R v Merrett, Piggott & Ferrari [2007] VSCA 1

1 Some time after 4:30 pm on 16 June 2001, a Mitsubishi tray truck was stolen from a locked yard in Blackburn. A pair of bolt cutters was used to gain access to the yard. Shortly after 9:00 pm that evening, a bobcat parked at a work site in Kew was loaded onto the stolen truck, and taken to a property in Warrandyte. The movement of the bobcat triggered a tracking device, and police were notified. They attended at the Warrandyte property and, soon after, intercepted the applicants driving a white van away from the property. The police searched the property and located the stolen truck and bobcat parked nearby.

2 On 5 June 2006, a County Court jury found each of the applicants guilty of two counts of theft (of the truck and the bobcat respectively). Each applicant was sentenced to three years' imprisonment on each count. In each case it was ordered that one year of the sentence on the second count be served cumulatively on the sentence on the first, giving a total effective sentence of four years' imprisonment. In each case, the non-parole period was fixed at two and a half years.

3 The first applicant ("Merrett") seeks leave to appeal against conviction and sentence. The other two applicants ("Piggott" and "Ferrari") seek leave to appeal against sentence only. I will deal first with the appeal against conviction.

The alibi defence

4 The grounds of appeal against conviction concern what are said to be errors in the directions given to the jury concerning the defence of alibi, as to which only Merrett gave evidence but on which all three applicants relied. Before considering the detailed grounds, it is necessary to describe in more detail the sequence of events.

5 The Warrandyte property at which the stolen vehicles were found belonged to one Ernie Yarra. Yarra was known to Merrett. Previously, by arrangement with Yarra, Merrett had on several occasions stored at Yarra's property vehicles used by Merrett and his father in their bricklaying business.

6 In his evidence,[1] Mr Yarra recalled having received a telephone call from Merrett at about 8:00 pm on the evening of 16 June 2001. Merrett said that he had not seen Yarra for a while and "might pop up and have a drink". (At the time of the telephone call, according to Merrett and other witnesses,[2] Merrett was having dinner at a hotel in Fairfield.) After he received the phone call from Merrett, Mr Yarra unlocked the padlock on his gates so that Merrett would be able to drive in. He then went to his bedroom to watch TV, at some time between 8:30 and 9:00 pm. He did not hear anything further until about 10:40 pm, when he saw that police were in attendance at his property.

7 The relevant chronology is as follows:

4:30 pm Truck is left locked and secured in the Blackburn yard;

6:30 pm Merrett arrives at the Fairfield hotel with Ferrari and Piggott;

7:00 pm The owner of the bobcat leaves it parked in Kew;

9:15 pm Bobcat owner is informed that the bobcat is "on the move";

9:15 pm Kew resident sees two men wearing steel-capped boots loading the bobcat onto a truck;

9:45 pm Police intercept the van and the three applicants;

8 A police search of the van revealed a pair of bolt cutters and two pairs of steel-capped boots with fresh mud on them. Forensic evidence established that the bolt cutters had been used on the locks and chain at the Blackburn yard from which the truck was stolen. On the tray of the stolen truck there was a footprint which - the defence conceded - belonged to Piggott.

9 As the Judge explained to the jury, the prosecution's case rested on circumstantial evidence. His Honour explained, clearly and succinctly, what was required of the jury in considering such a case:

"In a case such as this you should examine the assemblance of the pieces with care to see that enough of them exist and that they could only be assembled to paint the picture of guilt. If they can be assembled to paint some other picture, you would have a reasonable doubt about the existence of the guilty picture. In any kind of circumstantial evidence case the test which must ultimately be applied, consistent with the requirement of proof beyond reasonable doubt, is, does this evidence exclude every other reasonable explanation but that of guilt? I will repeat that. Does the evidence exclude every other reasonable explanation but that of guilt? If it does, then the guilt of the accused has been proved by the circumstantial evidence.

If, on the other hand, there exists an explanation or hypothesis which is consistent with the circumstantial evidence and consistent with innocence, then plainly the guilt of the accused has not been proved by the circumstantial evidence."[3]

10 The key circumstantial matters relied on by the Crown, as identified in his Honour's charge, were as follows:

•

the call from Merrett to Yarra as a result of which Yarra opened the gate to his property, which - as Merrett knew - was normally locked;

•

the fact that Yarra made no mention in his police statement of having agreed to allow any other person to enter the property, let alone to bring in a truck carrying a bobcat. (Nor had Yarra mentioned making any request that Merrett inspect his chimney, that being the explanation given in evidence by Merrett for having gone to the property);

•

the observation by the bystander in Kew that the two men loading the bobcat were wearing steel-capped boots, and the presence of two pairs of such boots in the rear of the applicants' van;

•

the fact that, only about five minutes after the truck and the bobcat had arrived at Mr Yarra's property, the three applicants drove out of that property in their van;

•

the fact that Piggott's footprint was on the tray of the stolen truck;

•

the fact that the applicants' van contained the bolt cutters which had been used on the padlock at the yard from which the truck was stolen.[4]

11 The alibi defence was uncomplicated. It rested on the proposition that the applicants had left the Fairfield hotel "at about 9:00 pm" on 21 June and hence could not have been responsible for the thefts. According to the evidence, the applicants had been at the hotel from about 6:30 pm, together with Merrett's father and three other people who were there to discuss an investment proposal. Each of those three gave evidence to the effect that, in the course of the evening, Merrett snr spoke to the three applicants, drew attention to the time, and told them that they should "get going".

12 Each witness recalled Merrett snr mentioning 9 o'clock although, unsurprisingly, their recollections differed as to precisely what had been said. The various versions were to the following effect:

•

"You'd better get going because it's getting on and it's after nine. The old fellow might be in bed."[5]

•

"Come on, boys, it's 9 o'clock, if you don't get up there the old man might be asleep."[6]

•

"It's gone 9 o'clock. You have to leave."[7]

•

"It's getting on 9 o'clock. You've got to get going."[8]

13 There were also differing recollections of the time at which the applicants left the hotel. Merrett himself said it was "a little after 9 o'clock".[9] The other witnesses said variously that they left "round about 9 o'clock";[10] "shortly after" Merrett snr had said it was 9 o'clock;[11] and "about 10 minutes" after that statement was made.[12]

Ground 1

14 The first ground of the conviction appeal is expressed in the following terms.

Ground 1: The learned trial judge erred in his directions to the jury concerning the evidence led in support of the Applicant's defence of alibi and the effect of that evidence.

PARTICULARS

(i) The learned trial judge failed to direct the jury that, in order to convict the Applicant, it was necessary for the Crown to prove beyond reasonable doubt that the said evidence was not true.

(ii) The learned trial judge failed to direct the jury that, in order to convict the Applicant, it was necessary for the Crown to exclude beyond reasonable doubt any reasonable possibility that the said evidence might be true.

(iii) The learned trial judge failed to direct the jury that it was necessary for the jury to acquit the Applicant if there was any reasonable possibility that the said evidence was true.

15 Mr Holdenson for Merrett argued that it was open to the jury to acquit Merrett (and the other applicants) on the basis that there was a reasonable possibility that the evidence about the time of their departure from the hotel was true, such that Merrett had been at the hotel, not in Kew, at the time of the theft of the bobcat. It was for the Crown to "remove, eliminate or disprove any reasonable possibility that the evidence of alibi might be true". Mr Holdenson submitted that the Judge ought to have directed the jury specifically in relation to the alibi defence, to the effect that:

•

the prosecution must prove beyond reasonable doubt that the alibi evidence was not true; and

•

unless the Crown excluded beyond reasonable doubt any reasonable possibility that the alibi evidence might be true, the jury must acquit.

16 Since the onus of negating the alibi rests (as in the cases of self-defence and provocation) on the prosecution,[13] an accused is entitled to be acquitted if there exists a reasonable possibility that the alibi is true. Mr Holdenson argued that the Judge in the present case was bound to spell out for the jury the three possible conclusions to which they might come in relation to the alibi evidence, namely:

(a) they might accept the alibi, in which case they must acquit;

(b) they might reject the alibi, in which case they must assess the other evidence as a whole;

(c) they might not accept the alibi but nevertheless conclude that it could reasonably be true, in which case they must acquit.

(This formulation was proposed by Roden J in R v Amyouni,[14] although it did not command majority support in that case.)

17 The Judge gave none of these directions. Nor, in my opinion, was it necessary for him to do so in the circumstances of this case. The applicable principles are clear:

1. There is no general rule that, apart from the general directions about the burden of proof and the standard of proof, the trial Judge must give a specific direction that the Crown has the onus of disproving the alibi beyond reasonable doubt.

2. If, however, there is an appreciable danger of the jury thinking that the accused bears the onus of establishing the alibi, the Judge should give a specific direction that it is for the Crown to disprove the alibi.[15]

18 A danger of that kind may arise, for example, where some particular comment is made about the alibi evidence, either by the prosecution (as in R v J (No.2)[16]) or by the trial Judge (as in R v Preece[17]), which might mislead or confuse the jury about where the onus lies. No such comment was made in the present case.[18] Mr Holdenson relies, however, on the Judge's directions to the jury that they might accept or reject different pieces of evidence from those accepted or rejected by fellow jurors,[19] and might accept part of one witness's evidence and reject other parts of the evidence of that same witness.[20] He argued that these directions - which are conventionally given, for good reason - omitted the third possibility (para 16(c) above). That is, the jury should have been told that they might neither accept nor reject the alibi evidence but conclude nevertheless that it might reasonably be true.

19 Mr Holdenson also referred to the following - also conventional - direction given in relation to the evidence of Merrett, which he said failed to make good that omission:

"... [I]t is best that you regard [Merrett's] evidence in the same way as you would any other witness's evidence, but remembering that the accused may be under much more strain than other witnesses, because he is the accused and remembering that of course by going into the witness box, he does not assume any burden of proof. The burden of proof still rests on the Crown. His evidence, and the evidence called on his behalf, is evidence before the Court that you can take into account in relation to each of the two charges that have been brought against all three accused. It is not evidence that is only relevant to the case against Mr Merrett."[21]

20 A judge's charge must, of course, be considered as a whole. Unlike the appellate court, the jury is not reading the charge but hearing it.[22] What matters is the overall effect of the charge on the jury - as best an appellate court can assess it - and this is especially so where the question is whether there was a "risk" or "danger" of the jury in some way mistaking its task or engaging in impermissible reasoning.

21 Having read the charge in its entirety, I do not consider that there was any danger of the jury being left with the impression that it was for Merrett, or for the three applicants together, to prove the defence of alibi. On the contrary, the unifying theme of the entire charge was that the Crown had to establish guilt beyond reasonable doubt. His Honour referred on four separate occasions to the onus of proof being on the Crown and on no fewer than ten separate occasions to the requirement that guilt be established beyond reasonable doubt. Moreover, his Honour said specifically in relation to the circumstantial evidence case that -

"it is not for the defence, it is not for the accused, to convince you of any matter at all in this trial. The onus rests entirely on the prosecution throughout the trial..."[23]

22 Nor, in my view, was there a need for a direction in relation to the third possibility referred to earlier (para 16(c), 18 above). That this is a possible conclusion open to the jury is implicit in, and quite adequately conveyed by, the standard "proof beyond reasonable doubt" direction. That direction speaks for itself, and allows of no elaboration.[24] When the Judge says that the Crown must establish beyond reasonable doubt that the accused committed the offence, it is equivalent to saying that the Crown must prove that there is no reasonable possibility that the accused is innocent or - in the case of an alibi defence - no reasonable possibility that the accused was elsewhere at the time the offence was committed. For the Judge to have told the jury that, while neither accepting nor rejecting the alibi evidence, they might conclude nevertheless that there was a reasonable possibility that the alibi evidence was true would have merely been to restate the direction he had given - repeatedly - on the standard of proof. In my view, a direction which listed the three possibilities would only have over-complicated the jury's task and introduced "excessively sophisticated distinctions, unlikely to be understood."[25]

23 In any case, the Judge did, in his direction on circumstantial evidence, draw specific attention to the Crown's obligation to exclude reasonable possibilities consistent with innocence:

"If ... there exists an explanation or hypothesis which is consistent with the circumstantial evidence and consistent with innocence, then plainly the guilt of the accused has not been proved by the circumstantial evidence."[26]

24 For completeness, it should be mentioned that none of these matters was the subject of exception taken by counsel. It can safely be inferred that none of the three defence counsel perceived any danger of the jury treating the alibi as a matter for proof by the accused. The conclusion I have arrived at does not depend upon the failure to take exception, but is confirmed by it. In my view this ground fails.

25 I turn to Ground 2, which was expressed as follows:

Ground 2: The learned trial judge erred in his directions to the jury in that he failed to direct the jury as to the consequences which flowed should the jury either reject the evidence of alibi or find that the evidence of alibi was false.

PARTICULARS

(i) The learned trial judge failed to direct the jury that the jury must not reason that the Applicant was therefore guilty.

(ii) The learned trial judge failed to direct the jury that if the jury were to find that the Applicant had lied in his evidence concerning his alibi and/or that the alibi was false, then the jury could not for that reason alone convict the Applicant.

(iii) The learned trial judge failed to direct the jury that there may be a number of reasons for the false alibi, each inconsistent with the guilt of the Applicant, for example, in order to bolster what the Applicant perceived to be a weak defence or escape the unjust or unfounded allegation of the Crown.

(iv) The learned trial judge failed to direct the jury that, if the jury were to find that the Applicant had lied about his whereabouts at the time of the thefts of the two items of machinery, then that did not of itself prove that the Applicant was present at or near the two items of machinery when they were stolen.

26 This ground concerns the second of what this Court described in R v J (No.2)[27] as "the twin dangers" associated with alibi evidence, the first being that discussed under Ground 1. It is the danger that, if the jury concludes that an alibi is false, they will immediately conclude that the accused raised it to conceal his guilt.

27 Once again, however, there is no general rule that the jury must be warned not to reason from their rejection of the alibi to a conclusion that the defendant is guilty. As with onus of proof, the need for a specific direction to the jury arises only where -

"there is an appreciable risk that they may misuse evidence and adopt an impermissible process of reasoning..."[28]

28 In my view, there was no appreciable risk that the jury might -

"use their rejection of an alibi defence ... as an implied admission of guilt."[29]

There was a positive - and powerful - case against the applicants based on the circumstantial evidence. Whatever view was taken of the alibi, the applicants faced the very considerable difficulty of explaining away their having been at the Warrandyte property within minutes of the stolen vehicles coming to rest there, and also the presence in their van of the incriminating items.

29 In any case, as the Director pointed out in argument, it was not necessary for the jury to reject the alibi evidence for them to be satisfied beyond reasonable doubt of the guilt of the accused. Given the proximity of Fairfield to Kew, the evidence regarding their departure from the hotel at about 9:00 pm simply "made the timing very tight, not impossible", as the Director put it. Moreover, as there was no evidence as to when the truck had been stolen from Blackburn, it not having been seen after 4:30 pm, the alibi evidence was in any case relevant only to the theft of the bobcat.

30 Once again, no exception was taken in this regard by any of the three defence counsel, presumably because they saw no relevant danger of impermissible reasoning by the jury. Alternatively, as the Director suggested, their silence might be explained as indicating a recognition that any specific warning to the jury against impermissible reasoning could only have thrown into even sharper relief the positive case against the applicants, and the inherent implausibilities in the explanation given (by Merrett) for their presence at the Warrandyte property.

31 In my view, this ground also fails. I would therefore refuse the application for leave to appeal against conviction.

Applications for leave to appeal against sentence

32 The principal ground relied on by all three applicants, in seeking leave to appeal against sentence, concerned the delay between the commission of the offences and their ultimate disposition. The chronology is stark indeed:

16 June 2001 offences committed;

9 April 2004 charges laid;

27 June 2006 applicants sentenced.

There was thus a delay of almost three years between the commission of the offences and the laying of the charges, and a further two years elapsed before the applicants came to be sentenced. The total time between offences and sentence was almost exactly five years.

33 The delay between the commission of the offences and the laying of the charges was quite extraordinary. As the Judge remarked during the plea hearing, the case against the applicants was "very straightforward" and virtually no scientific forensic evidence called. The only explanation given to the Judge was that the delay was the consequence -

"of ongoing investigations by the police in relation to the theft of earthmoving equipment in Victoria. ... [T]he police were involved in an ongoing investigation for a number of years in relation to separate matters [in] which they believed that one of the offenders was involved."[30]

34 While this might be an explanation, it certainly could not justify such inordinate delay. On a proper analysis, however, the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable.[31] But the absence of an explanation for the delay could not, by itself, justify any greater reduction in the sentence than would be made in a case where the delay was satisfactorily explained.

35 The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes "a powerful mitigatory factor".[32] In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v R:[33]

"... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.

... The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf."[34]

36 As Vincent AJA pointed out in R v Schwabegger,[35] a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion. His Honour cited the well-known passage from R v Todd[36] where Street CJ explained what fairness required in these circumstances:

"Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of lenience being extended to the prisoner."

These principles as to the relevance of delay were restated and applied by Chernov JA in R v Cockerell,[37] and were applied again, recently, by this Court in The Queen v Tiburcy.[38]

37 The trial Judge was clearly alive to these issues. His Honour noted the submission made on behalf of Merrett, that he had matured over the five years between offending and sentence, had not offended during that period and was now rehabilitated. His Honour then said:

"Given that you made 'no comment' responses in your record of interview and intended at all times to defend the charges and the fact that you were granted bail, I estimate that in the usual course of events your trial would be listed for hearing up to three years after the commission of these offences. There was then a delay of about one year to the first hearing date of 11 July 2005. The subsequent delays were effected on your application although that does not remove them completely from consideration. The Court of Appeal in R v Cockerell pointed out that delay could jeopardise any process of rehabilitation that has taken place. It means that the matter has been hanging over the head of the accused and can lead to a sense of unfairness in the offender. Those considerations apply to each of the prisoners."[39]

His Honour later repeated that each of the applicants was "affected by the delay that has taken place", but did not elaborate.[40]

38 With great respect to his Honour, I am unable to find, either in the sentencing remarks or in the sentences imposed on the applicants, any indication that the extraordinary delay was recognised, or treated, as being "a powerful mitigatory factor" in their favour. This may be because, although his Honour recorded the submissions made on behalf of each applicant about the delay, he expressed no conclusion of his own about their conduct over the intervening five years - or their evident rehabilitation. Likewise, he noted the delays, but expressed no view about them.[41]

39 It is hard to imagine a more powerful case based on delay than Merrett's. His record was unblemished throughout the period of five years between the offending and the sentencing; he had continued in employment in the family business until suffering an injury which required surgery in 2004; and he had strong references about his support for charitable work. Aged 27 at the date of the offending, he was 32 when he came to be sentenced, and his counsel was legitimately able to submit that he had been "probably quite a different person in 2001 than he is as a person today in 2006 when he has matured greatly and committed no further offence."[42]

40 The delay considerations were hardly less compelling in relation to Ferrari and Piggott. Ferrari also had an unblemished record over the five years between the thefts and the sentencing. He had spent 20 months of that period in prison (having been sentenced in December 2001 for an earlier, unrelated, offence), but had not offended in the almost three years following his release. As the Judge noted, Ferrari had a long criminal record. He had appeared in court 16 times in the period 1972-2001; he had convictions for dishonesty (1978, 1993) and repeated convictions for driving offences. Following his release from prison in August 2003, however, he resumed a relationship, and worked during the week for the Merrett bricklaying business. He would return at weekends to Colac where his partner lived. In short, Ferrari had significantly rehabilitated himself in the post-release period of almost three years.

41 Piggott also had a bad criminal record. He was convicted of dishonesty offences on four separate occasions in the period 1998-2001. The last of these resulted in a sentence of nine months' imprisonment, imposed in November 2002 for a theft committed in September 2001, shortly after the thefts the subject of the present applications. Piggott served the nine months, together with three months for breach of an earlier suspended sentence for dishonesty offences, and was released in November 2003.

42 But, like Ferrari, Piggott could point to a lengthy period during which he had not offended. In the period September 2001-June 2006, a period of some 57 months, he was at liberty for 45 months, and committed no offence. Particularly impressive, in view of his record of serious criminal offences, was the crime-free period between his release in November 2003 and the sentencing in June 2006, a period of more than two and a half years.

43 His counsel was able to point to a number of significant changes in his life. In 2005, his daughter was born; he gained employment (which was continuing at the time of the sentencing); and he brought to an end a destructive relationship -

"... in order for him to move profitably ahead and prosperously in all areas of life."[43]

He had successively undertaken a methadone program and, seemingly, escaped from the heroin addiction which had been a significant factor in his earlier criminal behaviour. Piggott is a year younger than Merrett. Aged 26 at the time of the thefts, he was 31 when he came to be sentenced, and his counsel could fairly submit to the Judge that Piggott had started -

"re-amending his life, with great success on all levels ... He stands here today as quite a different person to what he did in 2001, and indeed a different person to what he (was) in 2002. ... He's got self-purpose, proper self-esteem. ... he is a contributing and a positive factor of this community."[44]

44 The matters to which I have referred were very significant mitigating considerations, but they appear to have been given almost no weight. The learned Director conceded as much - quite properly, in my view. The Director acknowledged that it was most significant that none of the applicants had re-offended during the intervening years. As he acknowledged, this would hardly have been predicted given their respective criminal records.

45 It follows, in my view, that the sentencing discretion miscarried. In the Director's submission, had proper weight been given to these matters of delay and - critically - rehabilitation, this would have been reflected in both the orders for cumulation and in the non-parole periods fixed. In re-sentencing, I propose to take that course. In my opinion, the head sentence of three years on each count is appropriate but I would order that the sentences be served concurrently, giving a total effective sentence of three years. I would direct that the non-parole period in each case be 18 months.

46 Argument was advanced on behalf of both Merrett and Ferrari that their respective criminal records were not as bad as Piggott's and that this should be reflected in the sentences imposed. Merrett, in particular, argued that his record was materially better than that of either co-accused. The Director argued that there was no material distinction between them, alternatively that the only relevant distinction was between Merrett and the other two.

47 The Director submitted - and I respectfully agree - that the task for a sentencing judge is exceptionally difficult when the question of parity involves comparing different criminal records. It is not, of course, possible for the sentencing judge to know the circumstances of the prior offending, beyond such brief details as might be given by defence counsel on the plea. Typically, the judge knows only the date of sentence, the offence(s) and the sentence(s) imposed.

48 In the present case, the Judge concluded that he could not see any -

"substantial distinction between the three of you so far as your ... criminal records and prospects for rehabilitation."[45]

I respectfully agree. It is true that both Ferrari and Piggott have longer criminal records than Merrett, but there is a common feature: they have all been convicted more than once of dishonesty offences - Merrett in 1995 and 2002 (the latter in respect of 1998 offences); Piggott in 1998, 2000 (twice) and 2002; and Ferrari in 1978 (twice) and 1993. Without knowing more about the circumstances of the individual dishonesty offences, I would not be prepared to conclude that the record of one was materially worse, or better, than that of either of the others. In the absence of some strikingly clear distinction, it seems to me that it would be particularly invidious to differentiate between the three applicants, given that they participated equally (as the Judge found) in the thefts for which they are being sentenced and given that each of them can point to an impressive degree of rehabilitation in the period since then.

49 As I said in The Queen v Tiburcy,[46] the sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions,

recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.

50 I agree for the reasons given by the President that Merrett's application for leave to appeal against conviction should be refused. As to each of the applications for leave to appeal against sentence, I respectfully agree with the learned President that the delay between the date of the commission of the offence and the date on which the applicants were charged was, given that it was unexplained, unduly and unacceptably long. Moreover, there was a delay of some two years between the laying of the charges and the trial. One of the relevant consequences of these delays would have been to place the applicants under considerable strain during this period and this, of itself, amounted to a significant mitigating factor. Furthermore, and importantly, I think, each of the applicants has demonstrated that during this period he has made significant progress towards rehabilitation as the President explains. That is also a powerful mitigating factor. If the two matters are properly taken into account for sentencing purposes it is difficult to escape the conclusion that the impugned sentences are outside the relevant range. In the circumstances, I would also allow the applications in question and the consequent appeals and re-sentence each applicant as the President proposes.

51 I agree with the President, whose reasons for judgment I have had the benefit of reading in draft.

[1] Yarra had died before the trial, and his evidence was by way of a statement.

[2] See paras 11-13 below.

[3] T 157 (emphasis added).

[4] T 157-9.

[5] T 123.

[6] T 128, T 133.

[7] T 135.

[8] T 138.

[9] T 111.

[10] T 122.

[11] T 128.

[12] T 135.

[13] Killick v R [1981] HCA 63; (1981) 147 CLR 565; R v J (No.2) [1998] 3 VR 602 at 630 per Winneke P and Charles JA.

[14] Unreported, New South Wales, Court of Criminal Appeal, 18 February 1988.

[15] R v Wood (1968) 52 Cr App R 74 at 78, applied in R v Preece (1993) 96 Cr App R 264 at 267 and R v J (No.2) (supra) at 630.

[16] Supra at 630.

[17] Supra at 267-8.

[18] See also R v Graham [2000] TASSC 153; (2000) 116 A Crim R 108 at 114 [12] per Cox CJ.

[19] T 146.

[20] T 147.

[21] T 163-4.

[22] cf. R v Le Broc [2000] VSCA 125; (2000) 2 VR 43 at 57 [40] per Phillips CJ, Batt JA and Cummins AJA.

[23] T 159.

[24] See eg R v Cavkic [2005] VSCA 182; (2005) 12 VR 136.

[25] Zoneff v The Queen (2000) 200 CLR 234 at 262 [68] per Kirby J.

[26] T 157.

[27] Supra at 630.

[28] R v Graham (supra) at 111 [7] per Cox CJ; see also at 120 [29] per Underwood J. In R v J (No.2), the test was expressed in terms of "unacceptable risk": supra at 631.

[29] R v J (No. 2) (supra) at 631.

[30] T 269-270.

[31] R v Schwabegger [1998] 4 VR 649 at 659 per Vincent AJA; see also R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at 306 [17] per Wood CJ.

[32] R v Liang and Li (1995) 82 A Crim R 39 at 45, cited by Vincent AJA in R v Schwabegger loc cit; R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444 at 447 [10] per Chernov JA.

[33] (1983) 9 A Crim R 354 at 356-7.

[34] See also R v Blanco (supra) at 306 [16]; The Queen v MWH [2001] VSCA 196 at [18] per Callaway JA.

[35] R v Schwabegger (supra) at 659-660.

[36] [1982] 2 NSWLR 517 at 519-20.

[37] Supra (Winneke P and Buchanan JA agreed).

[38] [2006] VSCA 244.

[39] Reasons for sentence [7].

[40] Reasons for sentence [11].

[41] Reasons [6]-[7].

[42] T 255.

[43] T 239.

[44] T 242-3.

[45] Reasons for sentence [12].

[46] Supra at [15]-[16].